The legal evolution of crimes against humanity: Scale, system, and the state as criminal enterprise

“ A mistaken appeal to this principle has been the cause of much confusion about the Nuremberg trial. It is argued that parts of the Tribunal’s Charter, written in 1945, make crimes out of what before were activities beyond the scope of national and international law. Were this an exact statement of the situation we might well be concerned, but it is not. It rests on a misconception of the whole nature of the law of nations. International law is not a body of authoritative codes or statutes; it is the gradual expression, case by case, of the moral judgments of the civilized world. ”

“ In no other manner could there be developed "a real public opinion of the world responding to the duty of preserving the law inviolate."
A violation of International Law is a crime against all the peoples of the world. The immediate victims are not the only peoples who have a right to demand justice. ”

“ Here we have the paramount substantive law, plus a Tribunal authorized and required to apply it notwithstanding the inconsistent provisions of German local law. The very essence of the prosecution case is that the laws, the Hitlerian decrees and the Draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime. We have pointed out that governmental participation is a material element of the crime against humanity. ”

“ One cannot, of course, deduce from the preceding the individual responsibility of all the perpetrators of acts of violence. It is obvious that, in an organized modern state, responsibility is limited to those who act directly for the state, they alone being in a position to estimate the lawfulness of the orders given. They alone can be prosecuted and they must be prosecuted. International law is sufficiently powerful that the prestige of the sovereignty of states cannot reduce it to impotence. ”

“ CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. ”

“ Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. ”

“ We shall shortly demonstrate that the IMT Charter and C. C. Law 10 provide for the punishment of crimes against humanity. As set forth in the indictment, the acts charged as crimes against humanity were committed before the occupation of Germany. They were described as racial persecutions by Nazi officials perpetrated upon German nationals. The crime of genocide is an illustration. We think that a tribunal charged with the duty of enforcing these rules will do well to consider, in determining the degree of punishment to be imposed, the moral principles which underlie the exercise of power. ”

“ The criminal violation by the Hitlerites of the laws and customs of war, as well as the mass extermination of prisoners of war, are some of the gravest Crimes against Humanity. At the same time, the concept Crimes against Humanity is considerably broader in scope than any definition of German fascist crimes, of which proofs have been hitherto submitted to the Tribunal. ”

“ The answer to the question as to what the crime against humanity itself consists of can only be given from the examples of the statute and can be supported by the interpretation which the International Military Tribunal has given. According to this the crime against humanity is the aggravation of a war crime or a crime against peace. It differs from these crimes by its dimension, its system, and the manner of execution. ”

“ On the fourth point I venture to submit the submission in Paragraph 4 of Section C of my Appendix A, that the crimes of the SS were committed, first, on such a vast scale, and, secondly, over such a vast area that the criminal aims and methods of the SS, which have staggered humanity since this Trial opened, must have been known to its members. It was difficult to drive from one city of Germany to another without passing near to a concentration camp, and every concentration camp contained its SS crimes. ”

“ The merciless fascist machine tried to force them to be deprived of all that which, as a result of centuries of human development, had become an integral part of humanity.
Thus, death hung over them constantly, but on their way to death they were forced to pass through numerous and agonizing phases, insulting to human dignity, which constitute, in their entirety, the charge entitled in the Indictment “Crimes against Humanity.” ”

“ Our jurisdiction to try persons charged with crimes against humanity is limited in scope, both by definition and illustration, as appears from C. C. Law 10. It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual.” ”

“ In the scale of criminal undertakings, perpetrated in the course of the war by the leaders of National Socialist Germany, we finally meet a category which we have called crimes against human status (la condition humaine) .
First of all it is important that I should define clearly for the Tribunal the meaning of this term. This classical French expression belongs both to the technical vocabulary of law and to the language of philosophy. It signifies all those faculties, the exercising and developing of which rightly constitute the meaning of human life. ”

“ Our conclusion is that the same unlawful acts of violence which constituted war crimes under count one of the indictment also constitute crimes against humanity as alleged in count three of the indictment. Having determined the defendant to be guilty of war crimes under count one, it follows, of necessity, that he is also guilty of the separate offense of crime against humanity, as alleged in count three, and this Tribunal so determines. ”

“ The Crimes against Humanity—just as the other crimes of the German fascists for which evidence has been submitted to the Tribunal by my colleagues—originated in the criminal nature of fascism, in its endeavors to dominate the world by predatory seizure of whole states in the East and in the West, and by enslavement and mass extermination of people. These crimes were put into effect by adoption of the cannibalistic theories of German fascism.
Elements forming the concept of Crimes against Humanity are to be found in nearly all the criminal acts of the Hitlerites. ”

“ The foregoing provisions of paragraph 2 were intended to serve some useful purpose. War crimes and crimes against humanity had been defined or recognized and illustrated in paragraph 1 of Law No. 10 and did not need further explanation. Obviously, the provisions of paragraph 2 were intended to provide that if the act of one person did not complete the crime charged, but the acts of two or more persons did, then each person “connected with the plans or enterprises involving its commission” is guilty of the crime. This is the gravamen of the law of conspiracy. ”

“ Under the foregoing allegations of count one, the defendants are charged with having committed war crimes and crimes against humanity by acts constituting a conspiracy to commit them. This Tribunal has not applied or convicted any defendant under the conspiracy charge of the indictment. All defendants convicted, save one, have been convicted under a plan or scheme to commit the alleged war crimes or crimes against humanity. The same facts are alleged and proved as constituting a conspiracy to commit the same war crimes and crimes against humanity. ”

“ Let the defendants not be astonished at the charges brought against them and let them not dispute at all this principle of retroactivity, the permanence of which was guaranteed, against their wishes, by democratic legislation. War Crimes are defined by international law and by the national law of all modern civilizations. The defendants knew that acts of violence against the persons and property and human status of enemy nationals were crimes for which they would have to answer before international justice. ”

“ On the one hand, there was the civilization of the world, the peace of the earth, humanity, the lives and existence of millions of men threatened and hurt by Hitler’s criminal government. Such actions are called crimes against peace and humanity by the new international law which threatens them with the severest punishments. The Allied Nations considered these legal values worthy of their soldiers enthusiastically going to war and death for them. ”

“ Without this sentence and without this punishment the people would no longer have any faith in justice. When you have declared that crime is always a crime, whether committed by one national entity against another or by one individual against another, you will thereby have affirmed that there is only one standard of morality, which applies to international relations as well as to individual relations, and that on this morality are built prescriptions of law recognized by the international community; you will then have truly begun to establish an international justice. ”

“ The force of circumstance, the grim fact of world-wide interdependence, and the moral pressure of public opinion have resulted in international recognition that certain crimes against humanity committed by Nazi authority against German nationals constituted violations not alone of statute but also of common international law. We quote:
“If a state is unhampered in its activities that affect the interests of any other, it is due to the circumstance that the practice of nations has not established that the welfare of the international society is adversely affected thereby. ”

“ The General Assembly is not an international legislature, but it is the most authoritative organ in existence for the interpretation of world opinion. Its recognition of genocide as an international crime is persuasive evidence of the fact. We approve and adopt its conclusions. Whether the crime against humanity is the product of statute or of common international law, or, as we believe, of both, we find no injustice to persons tried for such crimes. ”

“ Accordingly it is a fixed principle of international law even today that proceedings within a state cannot entail sanction; spoken in the words of the statute, there are no independent crimes against humanity, which might be punished as international crimes. ”

“ It must be admitted that the statute does not contain a definition at all and that characteristics of a crime against humanity are not stipulated. If you want to find such a specification for an independent crime against humanity, which is detached from crimes against peace and war crimes, you can only fall back on the notorious “sound feeling” and you will get lost in the void, because its limits are not fixed, but shift according to the political wish. ”

“ I propose today to prove to you that all this organized and vast criminality springs from what I may be allowed to call a crime against the spirit, I mean a doctrine which, denying all spiritual, rational, or moral values by which the nations have tried, for thousands of years, to improve human conditions, aims to plunge humanity back into barbarism, no longer the natural and spontaneous barbarism of primitive nations, but into a diabolical barbarism, conscious of itself and utilizing for its ends all material means put at the disposal of mankind by contemporary science. ”